DAWSON.36.6.4 (Do Not Delete) 8/19/2015 9:43 AM PUBLIC DANGER James Dawson† This Article provides the first account of the term “public danger,” which appears in the Grand Jury Clause of the Fifth Amendment. Drawing on historical records from the seventeenth and eighteenth centuries, the Article argues that the proper reading of “public danger” is a broad one. On this theory, “public danger” includes not just impending enemy invasions, but also a host of less serious threats (such as plagues, financial panics, jailbreaks, and natural disasters). This broad reading is supported by constitutional history. In 1789, the first Congress rejected a proposal that would have replaced the phrase “public danger” in the proposed text of the Fifth Amendment with the narrower term “foreign invasion.” The logical inference is that Congress preferred a broad exception to the Fifth Amendment that would subject militiamen to military jurisdiction when they were called out to perform nonmilitary tasks such as quelling riots or restoring order in the wake of a natural disaster—both of which were “public dangers” commonly handled by the militia in the early days of the Republic. Several other tools of interpretation—such as an intratextual analysis of the Constitution and an appeal to uses of the “public danger” concept outside the Fifth Amendment—also counsel in favor of an expansive understanding of “public danger.” The Article then unpacks the practical implications of this reading. First, the fact that the Constitution expressly contemplates “public danger” as a gray area between war and peace is itself an important and unexplored insight. Significantly, “public danger” provides a method for thinking about terrorism that is already built into the Constitution. Second, since the Founders recognized the concept of “public danger” but yet declined to extend enhanced authorities to the President during these periods, the Grand Jury Clause may operate as an implicit limitation on executive power in the post-9/11 era. † Lecturer in Law, Yale Law School. Many thanks to John Lewis, my sounding board these last few years, who first spotted this gem in the Constitution. For helpful conversations and suggestions, I thank Bruce Ackerman, Eugene Fidell, Sam Kleiner, Neel Lalchandani, John Nann, Nick Nasrallah, Claire Priest, Andrew Tutt, John Witt, Katie Wynbrandt, and the editors of the Cardozo Law Review. All errors are mine. 2183 DAWSON.36.6.4 (Do Not Delete) 8/19/2015 9:43 AM 2184 CARDOZO LAW REVIEW [Vol. 36:2183 TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 2184 I. UNDERSTANDINGS OF PUBLIC DANGER ............................................................... 2186 A. English Conceptions of Public Danger ..................................................... 2187 B. American Conceptions of Public Danger Before the Founding ............. 2192 C. Public Danger and the Constitution ........................................................ 2195 II. JUSTIFYING A BROAD CONCEPTION OF PUBLIC DANGER .................................... 2197 A. An Intratextual Approach ........................................................................ 2198 B. Rejection of “Foreign Invasion” ................................................................ 2201 C. “Public Danger” Outside the Fifth Amendment ..................................... 2204 III. PRACTICAL IMPLICATIONS ..................................................................................... 2208 CONCLUSION................................................................................................................... 2212 INTRODUCTION The Constitution speaks of a number of national security situations: war,1 invasion,2 rebellion,3 and insurrection.4 Much ink has been spilled over the various military powers extended and withheld during these periods—and over who should wield them.5 Less often discussed are the two other national security situations mentioned by the Constitution: “imminent Danger as will not admit of delay”6 and “time[s] of . public danger.”7 These phrases, buried in dusty corners of the Constitution, seem to contemplate a situation more serious than peace but less serious than war. History makes clear that the phrase “imminent Danger,” borrowed from the Articles of Confederation,8 was intended to refer to the period directly preceding an enemy invasion. But there are few clues as to the meaning of the term “public danger.” 1 U.S. CONST. art. I, § 8, cl. 11; id. art. I, § 10, cl. 3; id. art. III, § 1, cl. 3; id. amend. III; id. amend. V. 2 Id. art. I, § 8, cl. 15; id. art. I, § 9, cl. 2; id. art. IV, § 4. 3 Id. art. I, § 9, cl. 2; id. amend. XIV, §§ 2–4. 4 Id. art. I, § 8, cl. 15; id. amend. XIV, §§ 3–4. 5 For a general discussion of this problem, see Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989); Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047 (2005); and John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167, 170 (1996). 6 U.S. CONST. art. I, § 10, cl. 3. 7 Id. amend. V. 8 See ARTICLES OF CONFEDERATION OF 1781, art. VI, para. 5 (“[A]nd the danger is so imminent as not to admit of a delay.”). DAWSON.36.6.4 (Do Not Delete) 8/19/2015 9:43 AM 2015] PUBLIC DANGER 2185 The Grand Jury Clause of the Fifth Amendment, drafted by James Madison in 1789,9 provides that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . .10 The apparent purpose of the Grand Jury Clause was to ensure that the government could never court-martial a civilian.11 As the Supreme Court has explained, “[t]he phrase ‘in time of war or public danger’ qualifies the [component of the Grand Jury Clause] relating to the militia; as otherwise, there could be no court-martial in the army or navy during peace.”12 Put simply, the “limitation as to . public danger relates only to the militia.”13 Thus, the Grand Jury Clause suspends the requirement of indictment for two groups of people: (1) members of the army and navy, during either war or peace; and (2) members of the militia, but only when they are “in actual service in time of War or public danger.”14 These two groups are subject to courts-martial. For all other persons, a grand jury indictment is always required.15 Although a few commentators have recognized that “[t]he Bill of Rights recognizes times of ‘public danger’ [as] distinct from ‘time[s] of War,’”16 no scholar has yet attempted to construct an account of what “public danger” meant to the Founders––or of what that phrase might mean today. This Article fills that gap by providing the first description of the history and meaning of the term “public danger.” Part I traces historical understandings of “public danger.” Part II argues that, in light of historical records from the seventeenth and eighteenth centuries, “public danger” should be interpreted broadly. On this theory, public danger includes not just impending enemy invasions, 9 CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 13 (Helen E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS]. This text was originally intended to take the place of existing language in the Constitution at article III, section 2, clause 3. Id. 10 U.S. CONST. amend. V. 11 See Johnson v. Sayre, 158 U.S. 109, 114 (1895) (“The whole purpose of the [Grand Jury Clause] is to prevent persons not subject to the military law from being held to answer for a capital or otherwise infamous crime without presentment or indictment by a grand jury.”); Ex parte Milligan, 71 U.S. 2, 34 (1866) (“[M]ilitary tribunals for civilians, or nonmilitary persons, whether in war or peace, are inconsistent with the liberty of the citizen, and can have no place in constitutional government.”). 12 Milligan, 71 U.S. at 34. 13 Ex parte Mason, 105 U.S. 696, 701 (1881) (internal quotation marks omitted); accord O’Callahan v. Parker, 395 U.S. 258, 272 n.18 (1969), overruled on other grounds by Solorio v. United States, 483 U.S. 435 (1987); Sayre, 158 U.S. at 114. 14 U.S. CONST. amend. V. 15 Id.; see supra notes 11–13 and accompanying text. 16 Gil Grantmore, Essay, The Phages of American Law, 36 U.C. DAVIS L. REV. 455, 469–70 (2003). Professor James Ming Chen authored this article under the pseudonym “Gil Grantmore.” DAWSON.36.6.4 (Do Not Delete) 8/19/2015 9:43 AM 2186 CARDOZO LAW REVIEW [Vol. 36:2183 but also a host of less serious threats (such as plagues, financial panics, jailbreaks, and natural disasters). As Part II explains, this broad reading of “public danger” finds significant support in both English and American history. Moreover, the history of the Fifth Amendment itself supports an expansive reading. In 1789, the first Congress rejected an amendment that would have replaced the phrase “public danger” in the proposed text of the Fifth Amendment with the narrower term “foreign invasion.”17 The rejection of this proposal provides inferential evidence that the Founders did not intend to limit “public danger” to times of “foreign invasion.” On the contrary, Congress may have intended to expose militiamen to military jurisdiction while they were acting to suppress riots or respond to natural disasters—both of which were “public dangers” commonly handled by the militia during the early days of the Republic.18 Part II then explains that several other tools of interpretation—such as an intratextual analysis of the Constitution and an appeal to uses of the “public danger” concept outside the Fifth Amendment—also counsel in favor of an expansive reading. Part III explores the practical implications of a broad understanding of “public danger.” First, the fact that the Constitution expressly contemplates “public danger” as a gray area between war and peace is itself important.